Personal Autonomy and the Option of Religious Law
Melbourne Law School
September 12, 2009
International Journal of Law, Policy and the Family, 2010
Oxford Student Legal Studies Paper No. 12/2011
The ‘millet’ and 'personal law' systems, found in countries such as India, Bangladesh, Sri Lanka, Singapore, Malaysia and Israel, are long-standing models of state accommodation of religious norms in family law. This paper, a work of applied normative legal theory, uses the Indian system of personal laws as a test-case to consider the extent to which these modes of accommodation undermine personal autonomy.
In particular, it studies the claim, made both in the context of the Indian personal law system and in debates in other jurisdictions on the use of religious norms in family law, that if people had a choice between religious law and generally-applicable secular law, this would remove any objection to such systems on the grounds of personal autonomy. It also studies the further claim that such a power to choose would actually make the personal law system better for personal autonomy than a system of general secular laws.
Liberal states, including the United Kingdom and Canada, increasingly face calls from religious groups to reform family law in order to accommodate religious norms. The conclusions of this paper contribute to the broader question of whether these states should do so, as well as the question of what form any accommodation should take.
Number of Pages in PDF File: 38
Keywords: religious arbitration, family law, personal law, India, autonomy
Date posted: November 13, 2009 ; Last revised: October 25, 2011